[Cite as State v. Young,
2016-Ohio-2720.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103024
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARRYL A. YOUNG, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-588695-A
BEFORE: E.T. Gallagher, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: April 28, 2016
ATTORNEY FOR APPELLANT
Stephanie L. Lingle
1360 East 9th Street, Suite 910
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Darryl A. Young, Jr. (“Young”), appeals his attempted
felonious assault conviction. He raises the following two assignments of error:
1. The trial court erred in finding Young’s change in plea to have been
made voluntarily.
2. Young did not have effective assistance of counsel.
{¶2} We find no merit to the appeal and affirm.
I. Facts and Procedural History
{¶3} Young was charged with one count of felonious assault, a second-degree
felony, for allegedly assaulting a man who refused to give him 50 cents. The charge
included a notice of prior conviction and a repeat violent offender specification.
{¶4} The court appointed counsel to represent Young at his arraignment. The
attorney-client relationship was brief, and counsel moved to withdraw after only one
month, explaining that “[d]efendant and undersigned counsel have a broad range of
differences, and cannot communicate effectively.” The trial court granted the motion to
withdraw and appointed new counsel.
{¶5} Two weeks after new counsel was appointed, Young filed a pro se motion
seeking permission to be present at all proceedings. Meanwhile, counsel demanded
discovery and began preparing the case for trial. Following a pretrial, the court referred
Young to the court psychiatric clinic for an evaluation to determine his competency to
stand trial. However, the evaluating psychologist stated in a report that he was unable to
complete the evaluation because Young “refused or was unable to cooperate with his
evaluation.”
{¶6} Following the psychologist’s recommendation, the court referred Young to
Northcoast Behavioral Healthcare (“Northcoast”) for a 20-day competency evaluation.
In the written evaluation, the psychologist at Northcoast opined that
Mr. Young is malingering or exaggerating his illness. It’s my opinion he
has antisocial personality disorder with borderline and narcissistic traits.
And so Mr. Young has the capacity to understand the nature and objective
of the proceedings against him and has the capacity to assist in his defense.
(Tr. 155.)
{¶7} Young subsequently filed, pro se, a motion to disqualify the judge and for a
mistrial and a motion to dismiss the indictment. The court did not rule on Young’s pro
se motions because he was represented by counsel. Shortly thereafter, Young advised
the court that he wished to represent himself pro se, and the court held a hearing to ensure
that Young knowingly, intelligently, and voluntarily executed a waiver of his right to
counsel.
{¶8} At the hearing, Young explained he was dissatisfied with both
court-appointed lawyers because they refused to do certain things he wanted them to do.
He also complained he needed more time on the jail computer to find the last names of
witnesses and to conduct research. According to Young, he was only entitled to use the
jail computer for two hours per day if someone was not using it. (Tr. 49.) An employee
of the jail advised the court that pursuant to jail policy, the computer is only accessible to
inmates with civil cases. (Tr. 49.) The trial court provided an order giving Young
access to the jail computer in accordance with jail policies and procedures. (Tr. 50.)
Young also advised the court that he was willing to plea bargain if the state would offer
something less than a guilty plea to the indictment. (Tr. 54-55.)
{¶9} The court thoroughly explained the perils of self-representation. The court
also explained that Young would be held to the same standards as an attorney. After
executing the waiver of counsel, Young stated, “This is going to suck.” When the court
inquired as to what Young meant by the statement, Young explained he was concerned he
would have little access to the jail computer. The court had previously explained that
lack of access to resources “is one of the perils that you face with representing yourself
and unfortunately being incarcerated further compounds things.” (Tr. 47-48.) Finally,
the court advised Young: “We’re not giving you any preferential treatment in this case,”
and Young replied, “I’m screwed.”
{¶10} The day after the hearing, the court held a second hearing for the purpose of
providing Young access to the state’s discovery. The state produced two DVDs and a
thick stack of documents. One DVD contained surveillance footage from inside Tower
City where the assault occurred. According to the state, this video showed Young
suddenly attacking the victim, punching him several times in the head, and biting off a
portion of his ear. The other DVD contained statements Young and the victim made to
police describing the event. Young viewed the DVDs in court.
{¶11} Continuing the conversation from the previous day, Young informed the
court that he had the full names of his witnesses but lamented that he had no way to
contact them from the jail because his use of a Google account to contact people is
against jail policy. He complained, “So now I’m stuck without any of my witnesses.”
In response, the court explained that it would provide Young with defense subpoenas to
compel witnesses to appear for trial because compulsory process is one of his
constitutional rights. Young was dissatisfied with the court’s response and insisted that
he have permission to use the jail computer to contact witnesses.
{¶12} After discussing the challenges Young would have in preparing a defense
from jail, the court and Young discussed the possibility of reappointing counsel. The
court explained that “hybrid” representation, where a defendant acts as co-counsel with
his lawyer, is not permitted by law, and that the court would not allow Young to vacillate
between acting pro se and having counsel. During the discussion, the following
exchange took place:
THE COURT: What is your intention with respect to pro se or with
counsel? Because you’ve indicated to me you’re kind of waffling or
wavering as to what your decision is.
MR. YOUNG: I have to — I’m forced to go with counsel, because I have
no other — I have no —
THE COURT: No, no, no, no, no, no. … You have rights and I will
provide you with whatever rights you choose. But to try to sit here and
imply that someone is forcing you to do something, that’s not going to fly.
You have choices. You have decisions to make.
I’m happy to answer all your questions and provide you as much
information as I can on all these issues for you to make an informed
decision. … Would you like to proceed with or without counsel?
That’s the issue.
MR. YOUNG: I have to proceed with counsel because I can’t get things
done without it.
THE COURT: All right.
{¶13} Finally, Young asked the trial court to order release of his property from the
jail. Young maintained that while he was at Northcoast, an envelope of papers and other
items of personal property were confiscated from him and never returned. The court
advised Young to discuss this matter with his attorney after the attorney is reappointed.
{¶14} The court reappointed counsel, and the parties appeared in open court and
on the record for the third time. The judge advised Young he had learned that Young
lost computer privileges because he violated jail policies for computer usage. (Tr. 111.)
An investigator at the jail informed the prosecutor that Young lost his computer privileges
because he used his personal Google Voice account to send and receive text messages
from family and friends. Young also asked a friend to email him videos of male
genitalia, and there were copies of pictures and videos of male genitalia discovered on the
computer during the time Young was using it. (Tr. 119.)
{¶15} The state advised the court that it offered a plea bargain to Young through
his reappointed counsel. The state agreed to reduce the felonious assault charge, a
second-degree felony, with notice of prior conviction and repeat violent offender
specifications, to attempted felonious assault, with no specifications. Counsel advised
the court that he had discussed the plea with Young, including the difference in penalties.
With respect to the state’s offer, the following dialogue occurred in open court and in
Young’s presence:
[COUNSEL]: My client would have approximately eight months or so in
county jail. I would absolutely make no promises as to what this Court
would do, but that’s significantly different than the potential two to eight
years under the felony of the second degree that currently was our
understanding prior to today.
THE COURT: Or to the 18 years the way it’s indicted.
[COUNSEL]: That’s correct. We’ve spoken to that
just briefly. So I indicated to him
that that’s a vast improvement, if
you will, or reduction. …
So I think he’s considering those things. I’m not rushing him. I just gave
him information.
(Tr. 123.)
{¶16} Following this discussion, the court explained that while a conviction on the
one count of felonious assault charged in the indictment carried a maximum prison term
of 18 years, a conviction of attempted felonious assault without specifications carried
only a maximum 36-month prison term. Young asked the court whether there was a
presumption of prison for the third-degree felony the state was offering in exchange for a
plea. The court advised Young that there was no presumption of prison, but the court
might impose a prison term depending on his prior criminal record, what the victim has to
say, and how he has historically behaved on probation. The court explained that he
would refer Young for a presentence investigation to learn more about him before
sentencing. Young did not enter a guilty plea at this time.
{¶17} Before the hearing concluded, Young once again asked about his
confiscated property. According to defense counsel, the papers contained the names of
possible character witnesses that counsel deemed were unnecessary for trial.
Nevertheless, the court explained:
I’m trying to make sure, Mr. Young, that your rights are protected, because
if in the worst-case scenario you go to trial and you lose, you face a very
lengthy sentence potential.
The system has to have protections in place to make sure that you have been
— all your rights have been protected. That includes the right to present a
defense. And to the extent that information, if it’s deemed relevant and
usable or whatever by [defense counsel], he has to know about and have
access to it.
{¶18} On the day of trial, Young indicated that he wanted to plead an insanity
defense, and that because his trial counsel was refusing to assert it on his behalf, he
wanted to once again terminate his relationship with counsel. The following
conversation ensued:
THE COURT: So, we have been round and round with that before, and I
believe you can terminate your counsel, but you’re going forward with the
jury today. So having said that, would you give me again the five page
waiver of right to counsel so I can go over it with Mr. Young?
THE DEFENDANT: No, I wasn’t talking about self-representation. I
was talking about termination of my counsel.
THE COURT: So there’s two things that are going to happen today. The
first is we’re going to complete your case today, whether you go to trial, or
not.
The second issue is whether you want to represent yourself or have
[counsel] represent you.
THE DEFENDANT: I have no other alternative?
THE COURT: We are going to trial today. I have had this conversation
with you numerous times in the past and we chose this date specifically so
that we could bring your case to its conclusion today, either representing
yourself or having [counsel] represent you.
However, you do have a right to counsel. I believe you also have the right
to represent yourself at this point, but absent — there’s nothing that
indicates to me that [defense counsel] has a conflict of interest or is
otherwise unable to represent you, so you don’t have to have [defense
counsel] represent you. You can represent yourself, but we’re going
forward today. What would you like to do?
THE DEFENDANT: I’m not having this forced upon me.
THE COURT: No, you’re not having it forced upon you. But here’s what
we’re going to do. [Bailiff], would you bring in the jury?
And I want to place on the record my history of dealing with Mr. Young,
that he is being purposefully difficult in the way he responds to these
question[s]. I believe it would clearly be in your best interest to have
counsel representing you. And so I will continue on with this matter to
have [defense counsel] represent you.
As I said, I believe the record is clear by the documents that are contained
within the record and personal dealings with you, that you do not suffer
from any mental illness or defects that would impact your ability to
understand the nature of the proceedings that are happening against you.
My conversations with you, you are an intelligent individual. You are able
to recite different dates and times that things happened and recall things.
You are, I believe … clever enough to use the system. When we had
prior conversation[s] with your ability to access the computer, instead you
chose to use that contrary to the rules of the jail and go on certain cites and
share inappropriate content with other persons.
So I am of the opinion that you have absolute clarity of what was going on
and that you are also malingering.
Again, to reiterate, I believe it to be in your best interest to have good
counsel represent you at the time of the trial, and so we’re going to continue
on in this fashion.
Would you bring the jury in, please?
{¶19} Just before the jury entered the courtroom, defense counsel advised the court
that Young wished to accept the state’s plea offer. The court asked Young if he truly
wanted to entertain the plea, and Young replied, “Yes, sir.” In response, the court stated:
THE COURT: All right. And again … we have been through this. …
* I want you to understand I want you in no way to try to feel as though I
am trying to jam a plea down your throat, so to speak.
I’m prepared to go to trial, … we do have a jury standing in the hallway
right now. We’re prepared to go forward. I think we have been over all
the issues sufficiently, but again, if you would like to avail yourself to your
right to trial by jury, I am happy to provide you with that opportunity.
We talked in the past. The chips will fall as they may. If they came back
with a not guilty verdict, that’s great. I’ll wish you well and send you on
your way. And of course, if they come back with a guilty verdict, I’ll have
to take a different approach.
Sir, do you have any other questions about that issue?
THE DEFENDANT: I wish to enter a plea.
{¶20} After statements from the prosecutor and defense counsel regarding the
terms of the plea agreement, the court conducted a thorough Crim.R. 11 colloquy. The
court advised Young of all the rights he was waiving by pleading guilty and explained
that his conviction will be considered a violation of postrelease control that would subject
him to additional prison time. The court also described the potential penalties he could
receive for his conviction in this case. Upon questioning, Young advised the court that
he understood what was happening and the rights he was waiving. However, when the
court asked Young if he was satisfied with the services provided by defense counsel,
Young complained:
I just wished that he fought harder for me, like as me. That’s the reason I
wanted to represent myself, because nobody is going to fight for me like
me.
…
[H]e was more a thing of being cautious, and I’m more bold.
{¶21} When the court asked if Young was otherwise satisfied with counsel, Young
replied: “Yes, I would say [defense counsel] is an adequate counsel and effective
counsel.”
{¶22} Pursuant to the plea agreement, Young pleaded guilty to one count of
attempted felonious assault, a third-degree felony, with no specifications. The court
sentenced Young to 30 months in prison. Young now appeals his conviction.
II. Law and Analysis
A. Guilty Plea
{¶23} In the first assignment of error, Young argues the trial court erroneously
concluded that he entered his guilty plea voluntarily. He contends he was forced to plead
guilty because he was denied access to evidence. In the second assignment of error,
Young contends his trial counsel was deficient because he (1) failed to locate a witness,
(2) made no effort to obtain Young’s property that was confiscated while he was at
Northcoast, and (3) failed to present mitigating factors at the time of sentencing. He also
argues that exculpatory evidence may have been lost as a result of counsel’s
ineffectiveness. We discuss these assigned errors together because they are closely
related.
{¶24} Under Crim.R. 11(C)(2), before accepting a guilty plea, a trial court must
personally address the defendant and (1) determine that the defendant is making the plea
voluntarily, with an understanding of the nature of the charges and the maximum penalty;
(2) inform the defendant of and determine that the defendant understands the effect of the
plea and that the court may proceed with judgment after accepting the plea; and (3)
inform the defendant and determine that the defendant understands that he is waiving his
constitutional rights to a jury trial, to confront the witnesses against him, to call witnesses
in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial
where the defendant cannot be forced to testify against himself.
{¶25} A trial court must strictly comply with the mandates of Crim.R. 11(C)(2)
regarding the waiver of constitutional rights, meaning the court must actually inform the
defendant of the constitutional rights he is waiving and make sure the defendant
understands them. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200,
897 N.E.2d
621, ¶ 27. Failure to fully advise a defendant of his constitutional rights renders a plea
invalid. Id. at ¶ 29.
{¶26} For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not
required and “substantial compliance” is sufficient. Veney at ¶ 14, citing State v.
Stewart, 51 Ohio St.2d 86,
364 N.E.2d 1163 (1977). “Substantial compliance means that
under the totality of the circumstances the defendant subjectively understands the
implications of his plea and the rights he is waiving.” State v. Nero,
56 Ohio St.3d 106,
108,
564 N.E.2d 474 (1990).
{¶27} The reviewing court conducts a de novo review to determine whether the
trial court accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, 8th
Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26. We are required to review the totality
of the circumstances and determine whether the trial court complied with the
requirements of Crim.R. 11(C). State v. Schmick, 8th Dist. Cuyahoga No. 95210,
2011-Ohio-2263, ¶ 6.
{¶28} If the trial judge partially complied with the rule with respect to
nonconstitutional rights, the plea may be vacated only if the defendant demonstrates a
prejudicial effect. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200,
897 N.E.2d 621, ¶ 17.
The test for prejudice is “‘whether the plea would have otherwise been made.’” State v.
Clark,
119 Ohio St.3d 239,
2008-Ohio-3748,
893 N.E.2d 462, ¶ 32, quoting
Nero at 108.
{¶29} A claim of ineffective assistance of counsel is waived by a guilty plea,
except to the extent that the ineffective assistance of counsel caused the defendant’s plea
to be less than knowing, intelligent, and voluntary. State v. Williams, 8th Dist. Cuyahoga
No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Spates,
64 Ohio St.3d 269, 272,
595
N.E.2d 351 (1992), citing Tollett v. Henderson,
411 U.S. 258, 267,
93 S.Ct. 1602,
36
L.Ed.2d 235 (1973).
{¶30} In order to establish the prejudice necessary for an ineffective assistance of
counsel claim, the appellant must demonstrate there is a reasonable probability that, but
for counsel’s deficient performance, he would not have pleaded guilty to the offense at
issue and would have insisted on going to trial. Williams at ¶ 11, citing State v. Xie, 62
Ohio St.3d 521, 524,
584 N.E.2d 715 (1992), and Hill v. Lockhart,
474 U.S. 52,
106 S.Ct.
366,
88 L.Ed.2d 203 (1985).
{¶31} On the day of trial, counsel described his attempts to locate a defense
witness, but indicated that, despite his best efforts, he was unable to make contact with
him. The record contains little evidence as to whether or not defense counsel eventually
made efforts to obtain the property Young claimed was confiscated from him.
Nevertheless, there is nothing in the record to indicate that the presence of the missing
witness or the confiscated property would have changed the outcome of the proceedings.
{¶32} Young’s claim that counsel was deficient because “exculpatory evidence
may have been lost,” during the first five months of the pretrial stages is similarly without
merit. Young cannot demonstrate prejudice during these five months because he does
not even know if there was exculpatory evidence to begin with. When a court is left to
speculate as to whether any additional evidence existed, and what that evidence may or
may not have shown, the defendant fails to establish the prejudice necessary to support an
ineffective assistance of counsel claim. State v. Spencer, 8th Dist. Cuyahoga No. 69490,
2003-Ohio-5064, ¶ 12. Therefore, because Young’s argument is purely speculative, he
cannot demonstrate that the pretrial stages would have been different if counsel had acted
differently.
{¶33} Young contends he did not enter his guilty plea voluntarily because he was
forced to accept counsel against his wishes in order to gain access to legal resources and a
computer. He also contends the court prevented him from being able to contact a
defense witness and prevented him from recovering his property, which he claims
contained necessary evidence.
{¶34} However, Young is the only one to blame for his loss of access to the jail
computer. The court gave him an order allowing him to conduct research on the jail
computer, but Young lost his computer privileges because he used the computer in
violation of jail policies. And, as previously stated, there is nothing in the record to
suggest that Young would not have pleaded guilty if he had access to the missing witness
or the confiscated property.
{¶35} Moreover, the record shows that Young knowingly, intelligently, and
voluntarily pleaded guilty. Throughout several days of hearings, the court painstakingly
explained to Young all of his rights as well as the ramifications of a guilty plea. During
the plea colloquy, the following exchange took place:
THE COURT: Do you understand that by your entering into this plea here
today, that may constitute a probation violation, or prc violation which
could subject you to additional time that you might get in this case? Do
you understand that?
THE DEFENDANT: It’s not a may. It’s a certainty. … That was
one of the reasons why I wanted to try to get a lower felony, because I still
have to answer to that.
{¶36} Indeed, Young volunteered several times that he would like to enter a plea
bargain if the state made him an acceptable offer, and the state eventually did make such
an offer. Young faced up to 18 years in prison if convicted of the charge and
specifications alleged in the indictment. The state had surveillance video showing
Young attacking the victim. Thus, even if the missing witness could have provided some
mitigating evidence, Young would still have had a substantial risk of conviction at trial.
{¶37} Yet, when Young was represented by counsel, the state reduced the charge
and deleted the specifications in exchange for his plea. The longest prison term Young
could receive to the reduced charge was 36 months. Moreover, the record reflects that
the trial court informed Young, and determined that Young understood he was waiving
his constitutional rights to a jury trial, to confront the witnesses against him, to call
witnesses in his favor, and to require the state to prove his guilt beyond a reasonable
doubt. He also understood that no one could compel him to testify against himself and
that no one could comment on his decision to remain silent. Therefore, the record shows
that Young knowingly, intelligently, and voluntarily pleaded guilty to attempted felonious
assault.
{¶38} Finally, Young argues his trial counsel was ineffective because he failed to
present any mitigating statements at sentencing. This assertion is not supported by the
record. Counsel argued that Young should receive credit for taking full responsibility for
his actions. Counsel also asked the court to consider the fact that Young faces four
additional years in prison for the postrelease control violation when it fashions his
sentence. There is nothing in the record to show that defense counsel could have said
any more than these statements.
{¶39} Moreover, counsel’s mitigating statements seem to have had a positive
impact on Young’s sentence. Young was originally charged with felonious assault
because he bit off part of the victim’s ear. Young also broke the victim’s finger, which
affected his work as a cook. These are serious injuries, and the court could have
sentenced Young to a 36-month prison term. Yet the court imposed a lesser 30-month
sentence, and Young had a history of prior convictions of violent crimes.
{¶40} Therefore, the record reflects that the court complied with all the
requirements of Crim.R. 11(C) and that Young knowingly, intelligently, and voluntarily
pleaded guilty. Counsel effectively represented Young by procuring a plea agreement
that substantially reduced his potential prison time, and there is no evidence to suggest
that Young was prejudiced in any way by counsel’s performance.
{¶41} Accordingly, both assignments of error are overruled.
{¶42} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
TIM McCORMACK, P.J., and
MARY J. BOYLE, J., CONCUR
